Caoimhe Archibald MLA address to Durham Union
At the outset I want to make clear I believe in the Good Friday Agreement, I am a supporter of it and I want to see its potential realised through its full implementation and by all those who ascribe to the institutions it defines, committing to genuine power-sharing and partnership.
The Good Friday Agreement and its principles of respect, equality, freedom from discrimination and parity of esteem, remains the foundation of future agreement and progress.
So when I speak about the GFA being under threat, it is due to the implications and out-workings of the Brexit referendum and the wider political context which has resulted since then.
This evening I am going to focus on the rights protections afforded by the GFA which are under threat due to Brexit.
To date the Brexit negotiations have been explicit and resolute that the GFA should be protected in all its parts.
In addition, the negotiations have recognised the birth right of all people born in the North to choose to be Irish or British or both.
The negotiations have further committed to ensuring that Irish citizens in the North will continue to enjoy rights as EU citizens, including where they reside in the North.
If all of this is not simply hollow rhetoric, then it should mean that the GFA in all its parts must be preserved after Brexit Day, and that must include enabling legislation such as the 1998 Act which intrinsically links the North to EU law.
But none of this is in any way certain or guaranteed. Brexit has put the Good Friday Agreement and its full implementation at risk.
Indeed, under the Good Friday Agreement, the British government has a duty to act with rigorous impartiality in relation to the north and its current confidence and supply arrangement with the DUP has put that duty in doubt over the course of the recent negotiations to restore the Executive.
The British government have acquiesed to the DUP's anti-equality and anti-rights stance, for example in relation to marriage equality which they oppose and in protecting langauge rights which they oppose.
The British government's failure to implement outstanding elements of previous agreements including the Irish language legislation from the St. Andrews Agreement and legacy mechanisms in Stormont House, along with the also immediate back-tracking from the December draft text, are also reasons to doubt the commitments they have made in relation to the Brexit negotiations themselves.
The Good Friday Agreement is based on the assumption of EU membership between Britain and Ireland thus providing a neutral underpinning for how the three stands of the agreement operate.
This membership, and the common platform of rights standards, legislation and redress mechanisms that go with it, have played a key role in the peace process, helping to build confidence, facilitate cooperation, and strengthen relationships.
Brexit threatens to disrupt this finely balanced structure.
The GFA has a section dedicated to human rights and equal opportunities. Because the North doesn’t have a stand-alone equality act, the region therefore relies on EU law to provide a framework for these rights, and to ensure that aspect of the GFA is upheld.
This section of the agreement is under serious threat because of Brexit.
The 1998 Act is the legislation that allows the GFA to be implemented, and together the agreement and act form the basis of the constitutional structure in the North.
The ‘98 Act relies and references Ireland and Britain being members of the EU.
The Assembly, when in operation, is prohibited from making laws that are discriminatory or incompatible with rights under EU law.
There are several references to the EU in the ’98 act including Section 24 which states: A Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the Convention rights; or is incompatible with EU law.
There are also many references to the EU in the GFA, does Brexit make these references largely meaningless? Are we to assume that come Brexit Day, the GFA will have to be changed to remove those references? Would that be acceptable to people in the North? Would it require a referendum to change the GFA?
The Good Friday Agreement included the introduction of a Bill of Rights that would take into account the particular circumstances of the north. Twenty years on we still await the implementation of that commitment.
In the meantime the EU Charter of Fundamental Rights was introduced, it brought together all the different EU rights that were established at different times, in different forms into one single document with rights being harmonised upwards it contains rights not within the European Convention on Human Rights.
The Charter of Fundamental Rights however is not being retained after Brexit (although a commitment to no diminution of rights).
Loss of EU membership, including loss of the Charter of Fundamental Rights and jurisprudence of the Court of Justice of EU can only harm the GFA and its progression.
A fundamental tenet of the GFA is recognition of the birth right of all the people of the North to choose to be Irish or British or both and be accepted as such, and to hold citizenship and passports accordingly.
As such, the GFA requires an equality of citizenship among citizens, an equivalency of rights for both British and Irish citizens with an obligation on the Dublin government to provide 'at least an equivalent level of protection of human rights as will pertain in [the North].’
Both this birth right and equivalency of rights is central to acceptance of the GFA.
The draft Withdrawal Agreement has been explicit in stating that those people in the North who are Irish citizens will be entitled to EU citizenship rights.
The Withdrawal Agreement doesn’t however mention those born in the North who identify as British or as both.
Post-Brexit, British citizens in the North who have the right to Irish citizenship as per the GFA, will be linked to a third country.
If they aren’t granted EU citizenship, they could end up with fewer rights than Irish citizens, with Ireland obviously having the protections of the Charter of Fundamental Rights.
Such a scenario would create a differentiation between Irish and British citizens born in the North and would make a nonsense of the GFA principle of equivalency.
There is also the question of how Irish citizens who retain EU citizenship and the rights afforded by it access redress mechanisms including the Court of Justice.
A further uncertainty is in relation to the right of political representation for those Irish citizens who will be entitled to EU citizenship rights.
The democratic right of the people of the north to direct representation in the European Parliament must be retained and a recent report by University of East Anglia academic clarified there is no legal obstacle to this, however there is no provision currently as to how this would be provided for politically.
Strand 2 of the GFA is dedicated to facilitating cooperation across the island of Ireland.
And cooperation across Ireland has gone from strength to strength in practically every sphere of life north and south since the signing of the GFA.
That there is no longer the physical border has changed things dramatically for the better over the last 20 years of peace.
But more than that, the numbers of frontier workers have grown into the thousands since then with many of the rights enjoyed by these workers, rights that make it feasible to be frontier workers at all, coming from the EU.
There are many examples of cross-border projects involvng business, higher education institutions, health agencies, infrastructure, community and voluntary sector organisations etc which have been made possible because of EU programmes.
Anybody who tries to say that this aspect of the GFA won’t be impacted by Brexit possibly doesn’t understand the reality of the border in Ireland.
It is important to remember the majority of people in the north, 56%, voted to remain in the EU so the North has not actually consented to leaving (either on a simple majority or a cross-community basis).
Consent in this context doesn’t just mean the principle of consent within the Sewel Convention.
Consent in this context means that the wishes of the majority of the North have been overridden by a singular UK-wide vote on a profound constitutional matter.
The issue of consent, mainly in relation to the Sewel Convention, was dismissed by the Supreme Court which concluded that the North’s membership of the EU was a matter for the UK.
Overriding the wishes of the people in the North begs the question as to what other constitutional fundamentals might be changed without public consent and what implications that has for the GFA.
Given the constitutional change being imposed, a poll on the constitutional status for the north should be called so that the people can have their say on their future.
As a final point it should be noted there is a distinction between the GFA and peace.
Sometimes the two things are confused and that can cause the arguments regarding the GFA to be dismissed.
We now have peace and it’s highly unlikely that Brexit is going to bring back the conflict of the past, there is no community support for that.
The GFA is a living document that has yet to be fully realised.
Brexit can severely impede further progress and may even undo the progress already made.
That is why I believe the GFA is under threat and I urge you to support the motion.